White House must restore CNN reporter Jim Acosta's press pass, judge rules

A federal judge on Friday ordered the Trump White House to immediately restore the press pass of CNN Chief White House Correspondent Jim Acosta as the case between Acosta, CNN and the White House progresses.

Acosta was allowed back into the White House Friday afternoon and participated in a press gaggle on the North Lawn.

CNN filed a lawsuit suit earlier this week claiming that revoking Acosta's press pass to the White House, known as a "hard pass," violated the First Amendment.

President Trump, whose back-and-forth with Acosta, had become particularly tense over the past few months, weighed in on Friday saying that the White House is writing rules and regulations that would offer guidance related to the press corps.

"You can't take three questions and four questions and just stand up and not sit down. Decorum you have to practice decorum," Trump said in response to questions about the ruling. "We want total freedom of the press. That's very important it’s more important to me than anybody would believe. But you have to act with respect, you’re in the White House."

U.S. District Judge Timothy J. Kelly repeatedly emphasized that his decision to return Acosta's press pass as litigation continues was based on the Fifth Amendment, under which the judge ruled Acosta was denied his right to due process. Due process would give Acosta and CNN the chance to rebut and challenge the appropriateness of the government’s action.

“I do hold that plaintiffs have demonstrated a likelihood of success on their claim that adequate process was not provided to Mr. Acosta,” the judge said, rejecting the government's argument that statements from White House officials issued after Acosta's pass was revoked sufficed.

“Indeed, whatever process occurred within the government is still so shrouded in mystery that the government could not tell me at oral argument who made the initial decision to revoke Mr. Acosta’s press pass,” the judge added.

Acosta was stripped of his credentials, without warning, when he returned to the White House, where he works daily, after a heated exchange between Trump and Acosta at a press conference on Nov. 7.

In his closing remarks, Kelly made clear that the ruling, which is only the beginning of the court proceedings to decide Acosta’s White House access, was narrow and didn’t determine whether or not Acosta’s First Amendment right was violated.

“I want to emphasize the very limited nature of today’s ruling,” he said of his decision to grant the temporary restraining order that restores Acosta’s press pass.

“Because I’ve found that it must be granted as to the due process claim, I haven’t had to reach the plaintiffs First Amendment claim at all, in which they alleged that the government engaged in viewpoint or content discrimination,” Kelly said.

“So I want to make very clear I have not determined the First Amendment was violated here,” Kelly said, adding that he had not determined what legal standard would apply to the claim or how the 1971 case of Sherrill v. Knight, relied heavily upon by CNN’s legal team, would bind the judge, if at all.

The judge also said during the ruling, in addressing an argument from the government during the first hearing, that “the public doesn’t have a general First Amendment right to enter the White House grounds.”

“I have no quarrel with that at all,” the judge said.

But, Kelly said, Sherrill v. Knight holds that “once the White House opens up a portion of it to reporters for their use, some kind of First Amendment liberty interest protected by a due process right is created and I simply have no choice but to apply that precedent here.”

Responding to the decision, White House press secretary Sarah Sanders focused on Kelly’s comments on the First Amendment, despite the judge’s comments about his lack of a decision on that specific claim.

“Today, the court made clear that there is no absolute First Amendment right to access the White House. In response to the court, we will temporarily reinstate the reporter’s hard pass,” Sanders said.

"We will also further develop rules and processes to ensure fair and orderly press conferences in the future. There must be decorum at the White House," Sanders said.

Proceedings are expected to continue next week, and Kelly made it clear that the door was still open for changes in Acosta’s White House access.

"If at some point after restoring the hard pass the government would like to move to vacate the restraining order on the grounds that it has fulfilled its due process obligations then it may, of course, do so and I will promptly address that and then the remaining basis of the temporary restraining order."

Speaking after the ruling, Ted Boutros, an attorney for CNN said the news organization is "extremely pleased with the ruling today."

"A great day for the First Amendment and journalism," he said. "We're very excited to have Mr. Acosta be able to go back and get his hard pass and report the news about the White House."

Acosta thanked journalistic colleagues for their support and the judge for his ruling.

"Let's go back to work," Acosta said.

Earlier in the week, CNN and Acosta filed an emergency motion to have Acosta’s press pass immediately reinstated as the court case continues and asked for a ruling from Kelly, a Trump-appointed U.S. district judge.

The American Civil Liberties Union in a statement applauded Friday's ruling saying it "reaffirms that no one, not even the president, is above the law.

"The White House surely hoped that expelling a reporter would deter forceful questioning, but the court's ruling will have the opposite effect," Ben Wizner, the ACLU's director of speech, privacy and technology project wrote in a statement. "The freedom of the press is a bedrock principle, and our democracy is strengthened when journalists challenge our leaders rather than defer to them."